Stanley Fish is fascinating on the rival philosophies guiding the majority and minority opinions in the recent Supreme Court case which struck down parts of McCain-Feingold. Here he is on Stevens, author of the minority view:
Stevens also values robust intellectual commerce, but he believes that allowing corporate voices to have their full and unregulated say “can distort the ‘free trade in ideas’ crucial to candidate elections.” In his view free trade doesn’t take care of itself, but must be engineered by the kind of restrictions the majority strikes down. The marketplace of ideas can become congealed and frozen; the free flow can be impeded, and when that happens the only way to preserve free speech values is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again. Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.”
The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?
Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.
And on the other side:
The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.
The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”
And where will it end?
The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side.
Interesting about consequentialists, how in their mind they are privileged to know the Right Answer. Otherwise, how could they know how much thumb to put on the scale. It must be like porn--they knows it when they sees it.
Posted by: sbw | February 02, 2010 at 07:40 PM
Didn't read it all, but what I did read had a refreshing lack of bias. Not a total lack, of course (it's the NYT after all), but not nearly the bias one would expect.
Posted by: Buford Gooch | February 02, 2010 at 07:40 PM
Do we have to work so hard? It seems to me the bogeymen Stevens sees in corporate sponsored political ads is exaggerated .We already have corporate and union sponsorship of such speech by crooks who game the system knowing they'll get away with it.The restrictions are only feared by the law abiding or those not favored by the folks in charge at the FEC.
Posted by: clarice | February 02, 2010 at 07:45 PM
Stevens would be too flummoxed to decide how much thumb to put on the scale of justice if the corporate voice said, "For Brutus is an honorable man."
Posted by: sbw | February 02, 2010 at 07:47 PM
I think the old restrictin--against yelling fire in a crowded theater (or the equivalent) is as far as I'd take consequentialism.
Posted by: clarice | February 02, 2010 at 07:52 PM
Not a total lack, of course
Dude, his shorthand for the conservative position taken by Scalia, Thomas, Roberts, Alito and Kennedy is "the principled side".
The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side.
Unless the consequentialists can get that 5th vote and outlaw principled speech because it makes them feel bad.
Posted by: bgates | February 02, 2010 at 07:53 PM
Fish is being disingenuous. He's hiding his anti-free speech bias behind a smokescreen.
Stevens' and Fish are making an attack on the First Amendment--which would be fine, there's no reason the First Amendment itself should be beyond criticism. But, at least be honest about what you're doing.
Posted by: Patrick R. Sullivan | February 02, 2010 at 08:00 PM
Couldn't Mr. Fish's description of the minority (Stevens) opinion be used as an argument to shut down the NYT?
Posted by: Free Radical | February 02, 2010 at 08:02 PM
Being a pratical man, and not claiming to be a Constitutional scholar, I think it's too easy to lose the forest among the trees.
The Dems are in a tizzy because the Supreme Court upset their carefully crafted political advantage. They have managed, somehow, to get free, enthusiastic, and nearly 100% support from the media for their campaigns, and have also somehow managed to finagle big unions into being exceptions to the corporate rules of campaign finance.
To me, then, this isn't about the First Amendment, or "consequentialist and principled views" - it's about plain old political advantage, and the loss thereof.
Posted by: LouP | February 02, 2010 at 08:13 PM
I don't know shit about consequentialism or deonotologicalism, but I give myself a pretty solid A+ at understanding "Congress shall make no law..."
Posted by: Danube of Thought | February 02, 2010 at 08:37 PM
I consider just about 90% of what is propounded (and muzzled) by the NYT and the vast majority of other corporate media to distort the free trade in ideas, and to impede the search for truth. And yet I do not feel that it would in any way advance the principle of freedom of speech to restrict their rights to publish. Apparently I'm just not sophisticated enough.
(Damn, Fresh Air, you beat me to it!)
Posted by: Boatbuilder | February 02, 2010 at 09:14 PM
Shorter Stevens: Bring back the Fairness Doctrine.
Pity the poor Dems, with all that money tied up in their 527s.
Posted by: JM Hanes | February 02, 2010 at 09:23 PM
well if they want to repeal the Court's decision with a Constitutional Amendment, as Kerry suggested, they may also want to discuss motor voter laws, the misuse of government funds for political purposes by organizations such as ACORN, and the exemption from reporting of the sources of contributions and limits thereon by candidates opting out of Federal funding.
Just a thought....
Posted by: matt | February 02, 2010 at 09:40 PM
The organizations known as "unions" shall have unrestricted ability to pour money into their exercise of free speech.
The organizations known as "corporations" shall have no ability to pour money into their exercise of free speech.
Posted by: PD | February 02, 2010 at 09:41 PM
I was lucky enough to be taught by Professor Van Alstyne. Fish knows him and has to account for his intellect and that fact that he is liberal, in the real sense. I know of no better First Amendment scholar.
I feel certain his view of the phrase "Congress shall make no law" is well supported by history, analysis and massive brain power. Other constructions of the First Amendment are attempts to control the public discourse. They are to be rejected and dismissed for what they are. And, that includes college speech codes and "hate" crimes.
Posted by: MarkO | February 02, 2010 at 09:47 PM
1. Last I checked, the "institutional press" to which Stevens is so deferential is a collection of "corporate voices" which are allowed "to have their full and unregulated say" and which, by the uniformity of their voice, “can distort the ‘free trade in ideas’ crucial to candidate elections.”
2. Ironic that all the Free Speech absolutists of the past--think obscenity cases, etc.--were liberals. Back then, it was the conservatives who were laughed to scorn when they asked "what is the First Amendment for?" Now that conservatives have learned how to assert their First Amendment rights effectively the liberals have lost their principles and gone "consequentialist" on us. Coincidence?
Posted by: anduril | February 02, 2010 at 10:01 PM
I forget. Is Fish to be interpreted through visualization of an interpretive dance performed by transgendered dwarves or a mime troupe performing Swan Lake on unicycles in an unlit coal mine?
Posted by: Rick Ballard | February 02, 2010 at 10:02 PM
If the First Amendment is not "for" protecting political speech, then I don't know my history. And I rather suspect that a reading of history would show that Founders would have been aghast at the notion of politicians regulating political speech. They were all educated in the classical languages and would have been quick to ask, Cui bono? The answer would have come quickly, too.
Posted by: anduril | February 02, 2010 at 10:05 PM
Christopher Hitchens has lectured about the case behind (he says)the overated Oliver Wendell Holmes. Because the case was the conviction of some Yiddish speaking socialists, who railed against Woodrow Wilson's policies entering WW1. Hitchens said "nobody could read the original, except Yiddish readers. And, this wasn't yelling "fire in a crowded theater," it was, in hindsight, a very outstanding call. But no one listened.
No. I'm not a lawyer. Nor do I try to fake being one. Christopher Hitchen's lecture was sent to me by my son. Who just linked me to something already up on the Internet. Go ahead. Check it out.
Posted by: Carol Herman | February 02, 2010 at 10:13 PM
Mark O, the day college speech codes bite the dust, is the day affirmative action is exposed. Including it's relationship to Marx. And, all the attempts to take America off the Capitalism 'standard.'
Meanwhile, too many college students haven't got the aptitude. This number has been growing and swelling. Because admission standards are for those who have connections. Have money. Or "accept the debt." It's not based on measurable abilities. And, the haarvahd snobs (not you DoT!), have ruined the value of the credential.
Posted by: Carol Herman | February 02, 2010 at 10:22 PM
Who just linked me to something already up on the Internet. Go ahead. Check it out.
Normally an adjuration to check a link includes the link.
Posted by: PD | February 02, 2010 at 10:24 PM
The actual decision can be found here. If you care to read something that is relatively fascinating (as opposed to the maundering of Fish's inner gerbil), Justice Thomas' dissent to Part IV begins at page 178. His clarity of exposition continues to shine, as does his clear understanding of actual threats to free speech.
Posted by: Rick Ballard | February 02, 2010 at 10:35 PM
OT: VaccineGate?
Posted by: PD | February 02, 2010 at 10:48 PM
Sorry, PD. I am 70 years old. And, my best skills are working an IBM Executive. This darn fangled machine doesn't give me the opportunity to LUN. And,you're lucky I know what that means. Christopher Hitchens, my goodness, even I could Google that one. And, I'd look for his lecture on Oliver Wendell Holmes. The one where you're familiar with the reasoning "YOU CAN'T YELL FIRE IN A CROWDED THEATER." (I didn't know the case involved Yiddish speaking socialists. Sure they lost. But that's because you can't read Yiddish.)
Posted by: Carol Herman | February 02, 2010 at 10:52 PM
This recent discovery may help answer Fish's Constitutional questions.
The Philly Enquirer Journal reports that ">http://www.philly.com/philly/news/nation_world/20100202_Early_draft_of_the_Constitution_found_in_Phila_.html"> An Early draft of The US Constitution has just been found.
It is a pencil whipping of the proposed Constitution by a Constitution framer, James Wilson, in the summer of 1787. Wilson titled his scribbles of the proto-Constitution, "The Continuation of the Scheme."
Perhaps the answer lies in some Justices viewing the document as the US Constitution, and other Justices viewing it as a "scheme."
Anyhow, an interesting story.
Posted by: daddy | February 02, 2010 at 11:00 PM
It involved anti draft protests, Yiddish has very little to do with it. Now during wartime
there is a tendency to curtail antiwar speech,
ask Thoreau, Vallindingham, Debs, et al. Now ideally there should be no restriction, if one
reads the law strictly, Brandenburg in expression, and Sullivan in prose, seem to lead in that direction
Posted by: narciso | February 02, 2010 at 11:06 PM
What about the Skokie Nazi march case and the "burn the flag" case?
What possible legitimate goals would the consequentialists say they were promoting by ruling for the jerks who were "speaking" through base actions in those cases?
Posted by: Jim Rhoads a/k/a vjnjagvet | February 02, 2010 at 11:08 PM
PD-
That's a surprisingly old story, just that his ride up the escalator finally caught the hem of his pants.
De-pantsed at the top, what a shame, and all those cases of mumps, measles, and such.
All for grant glory.
Where have I seen that before....
Posted by: Melinda Romanoff | February 02, 2010 at 11:10 PM
Where have I seen that before....
Indeed. It does to have an odd ring of familiarity somehow.
Posted by: PD | February 02, 2010 at 11:19 PM
The parsing of words is an art form for Liberals and they are proud of it. First, it was "that depends upon the what definition of is is". It was only a matter of time until they got around to "Congress shall make no law"...
Posted by: PDinDetroit | February 02, 2010 at 11:32 PM
So did everybody drink their Coke-a-Cola tonight with their McDonalds sandwich ?
Posted by: Neo | February 02, 2010 at 11:39 PM
I Googled it.
Christopher Hitchens on free speech » A Modest Construct
16Feb07 Christopher Hitchens on free speech ... Everyone knows the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes, who, asked for an actual example of when it would be proper...
http://heliologue.com/2007/02/16/christopher-hitchens-on-free-speech/
Posted by: Carol Herman | February 02, 2010 at 11:40 PM
OT Mark Begich Corruption update:
The Dem controlled Anchorage Assembly was able ">http://www.adn.com/news/alaska/anchorage/city_election/assembly/story/1121687.html"> to forestall for another 2 weeks an Independent Audit Investigation of Begich's Budget corruption while Mayor, but it is nice to see from the comments that "Recall Senator Begich" members are starting to appear at the public Assembly Meetings.
Posted by: daddy | February 03, 2010 at 12:47 AM
Don't you get it? Stevens and Fish are smarter than you.
Posted by: bunky | February 03, 2010 at 06:59 AM
Didn't Rahm Emmanuel say once that "free speech is over-rated"? I wonder where he got that idea?
Posted by: Jack is Back! | February 03, 2010 at 09:17 AM
Didn't Rahm Emmanuel say once that "free speech is over-rated"? I wonder where he got that idea?
Listening to Obama? Or Biden?
Posted by: Rob Crawford | February 03, 2010 at 09:22 AM
Following up on LouP's thoughts, the consequentialists are the ones who have distorted a vigorous marketplace of ideas by allowing some businesses (such as the for profit business that is the NY Times) dispensation to campaign for their interests and ideas at any time they choose, while denying others the same right. Fish might want to come down from the stratosphere and think about whether Eugene McCarthy's 1968 insurgent campaign for the Democrat nomination would have gone as far as it did without corporate money.
By the way, Rick Ballard, I love your parody of Fish's writings, but I do admit I have some affection for Fish, who I beleive coined the term "boutique multiculturalists." Fish at least is somewhat aware of the silliness of many adherents of the so called postmodern way of thinking.
By the way, those who find the post-modernists amusing may recall the Social Text affair, in which the editors of the journal Social Text (I believe Fish was one of the editors, although I forget whether he was the head editor) accepted for publication and published an article on physics, laden with post-modernist jargon, that was a joke. See LUN for a summary.
Posted by: Thomas Collins | February 03, 2010 at 10:15 AM
Vaccinegate is interesting because it is the second great Lancet induced hoax in a short time--the previous being the publication's risible but oft quoted figures on civilian deaths in Iraq during the most recent war.
Now, Science, Nature and Scientific American along with Lancet are known to have published poorly peer reviewed articles which caused a great deal of damage.
If you want good ecienceinformation, I'm afraid Popular Mechanics must be your source.
Posted by: clarice | February 03, 2010 at 10:22 AM
Somebody please remind me why we want to let lots more of these people--like, ANY more of these people--enter this country: Saudi girl, 12, drops bid to divorce 80-year-old. Coming soon to a country near you: trafficking in pre-teen girls as cultural diversity.
Posted by: anduril | February 03, 2010 at 10:28 AM
This Ben Shapiro article is pretty good: Obama's Philosophically Fascist State of the Union Address. There's just one part I don't get:
I don't understand the use of the metaphor: "his sickening papal benediction."
Posted by: anduril | February 03, 2010 at 10:34 AM
Oh well, I may as well provide Shapiro's lead in:
Small wonder that Obama took the "consequentialist" side. Of course when his powers of persuasion, as exercised through the Solicitor General, fail, then there's always purple shirted thugs in the streets to make the consequentialist point.
Posted by: anduril | February 03, 2010 at 10:38 AM
I have some affection for Fish, who I beleive coined the term "boutique multiculturalists." Fish at least is somewhat aware of the silliness of many adherents of the so called postmodern way of thinking.
Stanley's a strange one; he seems to get pleasure out of lampooning behavior that he exemplifies.
Posted by: Captain Hate | February 03, 2010 at 10:41 AM
TC,
My problem with Fish is that, at root, he is as dishonest as any other prog hack pimping commie goals. Were that not so, one might be able to find an examination by him of Pew's role as an organization in using "free speech" to generate the appearance of popular support for CFR in the first place. There is very little difference between a charitable trust and a corporation using money to buy a megaphone to promulgate a fraud. Fish wants courts to separate "good" speech from "bad" speech in the sure and certain knowledge that the Gramscian infiltration of the judicial system is one seat short of the tipping point.
If journalism actually existed in the US, the public would know that frauds such as CFR or Peak Oil or the CO2 Monster were being perpetuated by "moneyed interests" with goals somewhat more sinister than simple profit. Fish may be a quite clever and articulate propagandist but he's working with the prog slavers building that nice gray cold prison where they hope to hold liberty until it is completely forgotten.
Screw him.
Posted by: Rick Ballard | February 03, 2010 at 10:53 AM
The problem with a consequentialist viewpoint is that it assumes that there is, somewhere, a body that knows exactly when free speech must be silenced, er, curtailed, and that this body cannot be corrupted. A good conservative knows better than that, and will always be talking past this viewpoint.
Free speech is decidely messy, but regulating free speech always ends up with people in power trying to find ways to perpetuate their power and prejudices, and often not even noticing that this is precisely what they are doing. No body of wise men is always wise, or always disinterested. It is not the way we are made.
Posted by: Appalled | February 03, 2010 at 10:56 AM
Cui bono? That's why we need one incorruptible man, right? A great leader.
Posted by: anduril | February 03, 2010 at 11:01 AM
CITIZENS UNITED case was about how the movie HILLARY was stopped from being shown. Citizens United is the non-profit group that made the film. And, it was the LEFT that used McCain-Feingold even allow it to be shown on pay-per-view.
Free speech has always meant, to me, you couldn't stop it before it occurs.
Obama is one of the most skillful liars I've ever seen operate. I wonder if his slap at Alito will live in history? So far people say they can't quote you one word from any address he has ever made. This one may be the classic one we get to remember? Even if not for the right reasons. Since people pick sides.
Posted by: Carol Herman | February 03, 2010 at 11:58 AM
Rick:
"My problem with Fish is that, at root, he is as dishonest as any other prog hack pimping commie goals."
Where do you see the dishonesty here? What I see is a clear, and useful, exposition of the two major approaches to the 1st Amendment. Indeed, the underlying embrace of consequence vs. principle seems emblematic of liberal vs. conservative philosophy. Fish is forthright about his own consequentialist sympathies, and I'm curious about where you think they interfere with his analysis. He doesn't address the arbiter question posed by Appalled above, but it seems to me that's more bath water than baby here.
I disagree with his observation that the Thomas dissent on anonymity is more consistent with the principled view, but Fish is certainly pointing to a key issue which is likely to make it to the Supreme Court and which will throw consequentialist vs. principled Constitutional interpretation into high relief. The recent lower court ruling on petition signers' "right" to anonymity speaks to that question. I haven't read the decision itself, but it appears to be based on the adverse consequences of revealing personal information about the signers and/or the privacy rights so controversially defended as implied in the Constitution. It seems to me that, in reality, Thomas, himself, is arguing for anonymity by consequence and implication.
The last time TM posted a Fish essay, I was similarly surprised by the vitriol it elicited which seemed all out of proportion to the points Fish was making in the actual article under discussion.
Posted by: JM Hanes | February 03, 2010 at 12:21 PM
anduril:
"I don't understand the use of the metaphor: "his sickening papal benediction.""
It certainly seems to comport with the popular understanding of the Pope as the infallible embodiment of the Church.
PD:
"It was only a matter of time until they got around to "Congress shall make no law""
It seems to me that the question of whether regulation with the force of law constitutes Congressional law making has been ripening on the vine for so long time now that's it's starting to rot. I'm not at all sure how the fact that such regulatory powers are being delegated to Executive branch entities and officials at an increasingly alarming rate fits into the Constitutional framework either. Ditto for Executive Orders with legal force.
Posted by: JM Hanes | February 03, 2010 at 12:36 PM
Mark Steyn applies a snarky wrecking ball to a critic of his warmergate media scandal column.
Posted by: boris | February 03, 2010 at 12:44 PM
"Where do you see the dishonesty here?"
On occasion a POV is expressed that provokes me to observe "so obviously wrong that expression is either ignorant, stupid, or dishonest".
ISTM that Fish can explain the opposing view in a fashion that opponents agree he understands it. That rules out ignorant and stupid. So what's left?
Posted by: boris | February 03, 2010 at 12:52 PM
JMH:
The Bill of Rights was designed as a response to the strengthening of central government contemplated by the Consitution. The idea that the central government would develop regulations suppressing or curtailing certain speech to enforce the "idea" of the First Amendment probably would have truly blown the minds of the folks who wrote that amendment.
Posted by: Appalled | February 03, 2010 at 12:56 PM
JMH,
Appalled's comment covers the basic dishonesty very well. Positing the "potential" for a truly impartial arbiter is initiating a philosophical circle jerk which will lead to something that will resemble the IPCC - at best. At worst, it's a dictatorship of the courts or some designated "referee" empowered to distinguish "good" speech from "bad" speech.
Fish's sophistry provides a light coating of intellectual powdered sugar to an attempt to suppress liberty but when the rhetoric is stripped away he is saying nothing that would meet with disapproval from Castro or Chavez. At heart, he's a slaver. The fact that he puts a few light knocks on some of those on "his" side is meaningless. That they stink worse than he does does not imbue him with the scent of roses.
Posted by: Rick Ballard | February 03, 2010 at 12:56 PM
The Bill of Rights was designed as a response to the strengthening of central government contemplated by the Consitution.
The Bill of Rights does not grant power to a central government. Those human rights were the ones our founders believed come from a power greater than government and therefore couldn't be taken away by a central government. The Bill of Rights grants power to the states and individuals and that's proof that limited government was their guiding principle.
Posted by: Rocco | February 03, 2010 at 01:04 PM
The Bill of Rights
grantsguarantees that power to the states and individuals and that's proof that limited government was their guiding principle.And if you think of freedom of speech as a property right it leads to less confusion and strengthens the concept of rights. You can't yell fire in a crowded theater because it's an infringement upon the rights of others. If you are the theater owner, you're violating the property rights of the customers. If you are another customer, then you're violating both the property right of the customers and the property right of the owner. It's a property right.
Posted by: Rocco | February 03, 2010 at 01:18 PM
"It seems to me that, in reality, Thomas, himself, is arguing for anonymity by consequence and implication."
I read that Thomas dissent as saying the existence of adverse consequences (death threats, loss of job) to support of prop 8 is an undesirable consequence, an unintended consequence, of a consequence approach to the first amendment.
IOW the consequence view has demonstrated an internal contradiction. That is hardly abandoning the principle view and embracing the consequence view.
Posted by: boris | February 03, 2010 at 01:19 PM
I am of the view that if the US Constitution is to have any integrity, it must provide a framework of government under which the self-evident truths of the American Declaration of Independence may be protected. For me, freedom of speech is part of life, liberty and the pursuit of happiness, whether that speech is exercised by an individual in his or her individual capacity, in loose association with others, or in the context of a business association such as a corporation. We don't need Obama or Pelosi or any of the other boobs who purport to act as our betters to tell us when and in what form we can express our views on politics. For me, that means case closed.
Posted by: Thomas Collins | February 03, 2010 at 01:30 PM
rocco, I think you're misreading Appalled. Appalled is correct to say that the Constitution represented a "strengthening of central government." The Constitution proper (that is, excluding the Bill of Rights) is largely an enumeration of the powers that each branch of the Federal government will have. As envisioned (and not only as it developed) the new Federal government was significantly stronger than the old Confederation.
I think Appalled is also correct to say that the Bill of Rights is a "response" to that "strengthening of the central government," i.e., the Bill of Rights was intended not as a grant of powers but to clarify the relations of the states and individuals to the Federal government. That clarification took the form of express limits (The Feds shall not...) on the powers of the Federal government. Some among the Founders thought such a clarification was unnecessary, but the Bill of Rights was added to satisfy those who thought that such clarification was needed. Thus, Appalled is in full agreement, not disagreement, with your statement: The Bill of Rights does not grant power to a central government.
Posted by: anduril | February 03, 2010 at 01:44 PM
rocco:
Yes, you need to reread my original comment. The idea of the Central Government as enforcer of the Bill of Rights, using a postmodernist interpretation of the clear text would have, um, astounded the original framers.
Posted by: Appalled | February 03, 2010 at 01:52 PM
he seems to get pleasure out of lampooning behavior that he exemplifies
A lot of them are like that - Chris Matthews and racism, Obama and fiscal irresponsibility, Rahm and mental disability....
Posted by: bgates | February 03, 2010 at 02:13 PM
--The idea that the central government would develop regulations suppressing or curtailing certain speech to enforce the "idea" of the First Amendment probably would have truly blown the minds of the folks who wrote that amendment.--
For the first 150 years the 1st Amendment was generally interpreted to protect political speech, but not so much other speech, especially the obscene kind. There were exceptions of course and one can argue credibly on either side of the obscenity issue.
But what was bizzare was that with McCain Feingold upheld the country was now in the position of allowing nude dancing as protected speech under the 1st amendment but political speech specifically aimed at a particular election or candidate was not.
Talk about blowing the founders minds.
Posted by: Ignatz | February 03, 2010 at 02:24 PM
Exactly,ignatz..Conduct and speech were given free speech protection as long as they involved anything but elections and political issues...the very raison d'être of the First Amendment,
Posted by: clarice | February 03, 2010 at 02:27 PM
Rick:
Powdered sugar and scent of roses do not an argument make. Your assault on the consequentialist view notwithstanding, Fish provides a far more useful framework for discussing interpretive issues than the usual originalist vs. living Constitution analysis. His use of "principled" is particularly apt, and ultimately telling, IMO. The genius of our Constitution is that it lays out a set of principles as opposed to the EU Constitution, for example, which institutionalizes an entire legal code, or the consequentialist ethic which is too complex for distillation and too inconsistent for codification.
While Fish may not have laid out the dangers of consequentialism to your satisfaction, he certainly made the case that Citizens United and the opinions it generated are a near perfect vehicle for the study of Supreme Court jurisprudence -- and the irreconcilability of consequence vs. principle. If you can fault his delineation of the principled view, please do. I'm hard pressed to see anything he wrote making the consequentialist view more attractive.
Posted by: JM Hanes | February 03, 2010 at 02:34 PM
"Fish provides a far more useful framework for discussing interpretive issues than the usual originalist vs. living Constitution analysis."
Really? "principle view" is just the Scalia definition of origninalist and "consequential view" is pretty close to "living Constitution".
Being able to accurately describe the difference between astronomy and astrology, or chemistry and alchemy, would not make an astrologer or alchemist any less of a con artist.
Posted by: boris | February 03, 2010 at 02:57 PM
Fish:
I'm not at all convinced that this is an accurate reflection of the views of most of the "conservative" justices. Certainly an originalist jurisprudence is no bar to "asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals..." Certainly leftist intellectuals are much more comfortable knocking down strawmen rather than dealing with reality.
Posted by: anduril | February 03, 2010 at 03:00 PM
That is not inaccurate so much as it is slanted to sell you the toxic snake oil in the pretty green bottle.
Posted by: boris | February 03, 2010 at 03:10 PM
Appalled
Yes, I'm sorry, I misread you!
Posted by: Rocco | February 03, 2010 at 03:17 PM
Rocco:
No problem. I don't think regular denizens here would expect me to take the libertarian view of free speech. It is the one point in my political philosophy where I am definitely not a member of the great middle.
Posted by: Appalled | February 03, 2010 at 03:34 PM
the [short sighted, uncaring] principled view
That is inaccurate, owing to the bracketed words which completely reverse the connotations of the original phrase. You're complaining that Fish is calling you "principled", boris.
Posted by: bgates | February 03, 2010 at 03:35 PM
The problem with any view other than originalist is that unelected federal judges have no damn business using any other approach. Originalism simply means that the judge makes a good faith attempt to apply the meaning of the statute intended by the drafters. It is neutral with respect to whether the Constitution is "kept current" or not. For example, if an originalist judge concludes that Section 5 of the Fourteenth Amendment was intended to grant Congress wide latitude in enacting legislation promoting the equal protection or privileges or immunities provisions of the Fourteenth Amendment, that judge, whether a political liberal, moderate or conservative, will apply a very deferential standard of review to legislation enacted under said provisions. In addition, originalism does not necessarily lead to conservative results. Let's take the case of federal judges knocking down state jury punitive damage awards on federal due process claims. An originalist judge might well conclude that the intent of the due process clause was not to protect business from sympathetic local juries. That judge, although he or she thinks large punitive damage awards as a policy matter unduly burden business, will uphold the punitive damage award in question. As to Fish's principled or consequentialist framework, an originalist judge as part of his or her inquiry would make a good faith determination as to whether the drafters of the provision in question intended a principled or consequentialist approach.
The simple reality of the matter is that the US Supreme Court has set itself up as a super legislature, and US citizens generally accept this. I happen to think this is toxic to a self-governing people, but I appear to be in the minority on this. Even supposed rock ribbed conservatives can turn wobbly on originalism when their ox is being gored (this has particularly been the case in the question of use of the federal due process clause to overturn state jury punitive damage awards).
Posted by: Thomas Collins | February 03, 2010 at 03:37 PM
You're complaining that Fish is calling you "principled"
Not at all. The statement in original form reads perfectly reasonably to me. My additions simply provide a post-modern alternate reality way to read it as well. It is often a mistake to assume the resonable interpretation your brain provides is either the intended one or the one perceived by others.
Posted by: boris | February 03, 2010 at 03:47 PM
TC:
Usually, originalism arguments date back to the original document, and, sometimes, the Bill of Rights. I have not really sen the argument extended to the Reconstruction Amendments, even though those are the realization of Abraham Lincoln's dream of incorporating the sentiments of the Declaration of Independence into the Constitution.
Posted by: Appalled | February 03, 2010 at 04:08 PM
My additions simply provide a post-modern alternate reality way to read it as well.
So, fake, and inaccurate.
It is often a mistake to assume the reasonable interpretation your brain provides is either the intended one or the one perceived by others.
I'm pretty sure even the NYT audience perceives the word "principled" to have more positive connotations than either "short-sighted" or "uncaring".
Posted by: bgates | February 03, 2010 at 04:10 PM
boris:
Really? "principle view" is just the Scalia definition of origninalist and "consequential view" is pretty close to "living Constitution".
Both principle and consequence based rulings can lay claim to giving a text the "meaning that it bore when it was adopted by the people." Where one might ask what the framers meant by the language they used in an Amendment, another might ask what purpose the framers meant an Amendment to serve. The latter is how you get to the penumbra of privacy. The former makes it difficult to deal with things like technological invasions of privacy.
As someone on the principled end of the continuum, that's why I think we need a Privacy Amendment.
The "living constitution" construct basicly ignores the Framers' intentions completely. ISTM that consequentialism is a far more insidious form of corruption, in which mission creep is incrementally cemented as precedents pile up.
Posted by: JM Hanes | February 03, 2010 at 04:17 PM
"The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another ..."
The use of "principled" rather than "originalist" obscures the silliness of this assertion. It is one more degree removed from the meaning of "what it says". It is not surprising not everybody would agree what the First Amendment is for ... if we can't agree on what it says it becomes useless. Which side is harmed more by that last circumstance?
Establishing that as an irreconcilable situation, in fact advocating that situation, wins the argument for the "consequence view" for all practical purposes.
It is one thing to joke about post-modern silliness, but it is generally unwise to drink their kool-aid.
Posted by: boris | February 03, 2010 at 04:23 PM
pretty sure even the NYT audience perceives the word "principled" to have more positive connotations than either "short-sighted" or "uncaring"
Which is why you read it the way you do. I'm pretty sure for the typical NYT reader "principled" = conservative.
And of course conservative = short-sighted" and uncaring.
Posted by: boris | February 03, 2010 at 04:25 PM
Even without my "enhancements", the "principled view", as presented by Fish, has no concern for what the First Amendment stands for (BS#1), lacks defense from speech that harbors potential for corruption (BS#2), oblivious to negative effects that impede achievement of the Amendments "goals" (BS#3).
According to Fish ... principled = unconcerned, oblivious, indifferent.
Posted by: boris | February 03, 2010 at 04:30 PM
Per Fish:
Not sure how you can reasonably get from that to "unconcerned, oblivious, indifferent."
Posted by: JM Hanes | February 03, 2010 at 04:37 PM
Appalled, I would answer that type of originalist argument by asserting that if a judge's proper role is to be a modest one, that judge must take into account duly adopted amendments to the documents being construed. Under my view, it is no problem that a case under one of the Reconstruction Amendments would be decided differently from what an originalist view of the Constitution in the 18th century would dictate.
JMH, I agree that an originalist view could look at the principled and consequentialist approaches, but I would add that a good faith attempt must be made to determine what approach (or other approach) the drafters intended.
Posted by: Thomas Collins | February 03, 2010 at 04:39 PM
"Not sure how you can reasonably get from that to "unconcerned, oblivious, indifferent."
Failing to quote the applicable text makes it harder, don't you think?
Sure ... Fish asserts the imputed uncaring obvlivious indifference is not the reason for holding to the actual meaning, it's just those pesky inscutable "principles" they put all their faith in. One suspects (if one is enlightened) their meanspirited heartless coldness might well be a contributing factor but let's not be judgemental here, after all they do love their "principles" don't they. (wink wink).
Posted by: boris | February 03, 2010 at 04:56 PM
"but I would add that a good faith attempt must be made to determine what approach (or other approach) the drafters intended."
I wouldn't mind seeing arguments based upon how Adams and Jefferson viewed the Alien and Sedition Acts (always bearing in mind who the French were helping and how they were finally paid off for their help). Of course, Jefferson wasn't a drafter - actual work was involved. His reaction did lay some groundwork for the Nullification movement though.
Posted by: Rick Ballard | February 03, 2010 at 05:01 PM
it's just those pesky inscutable "principles" they put all their faith in
So Fish stands accused of not only saying conservatives have principles, but of saying we are faithful to them.
I'd like to see you present a fair defense of that reading of the First Amendment and the people who hold it that doesn't use any of those code words like "principled", "faithful", "honest", "decent", "reasonable", etc.
Posted by: bgates | February 03, 2010 at 05:14 PM
bgates-
"Racist!"
I win!
Posted by: Melinda Romanoff | February 03, 2010 at 05:27 PM
ThomasC:
In general, I agree, but original intent can be a swamp of controversy in its own right too. That's doubtless why Scalia rejects "strict" construction in favor of "reasonable" construction.
Posted by: JM Hanes | February 03, 2010 at 05:50 PM
Fish stands accused of not only saying conservatives have principles, but of saying we are faithful to them"
Fish: "they find another interest of more value ..."
That would be the principles you take pride in being faithful to. Without saying what those principles are other than "what the founders have written".
There seems to be something in there that suggests these mysterious, venerable, principles hold some unspoken value to the faithful. Whereas the compassionate consequentialists value concern for the purposes and goals of the First Amendment. ISTM their position has a real world value which simple reverence for "the word of the founders" lacks.
Where does he say the First Amendment is written without archaic figures of speech requiring 18th century scholarship, that it is in plain English, and reasonable people should be able to agree on what it says ... and that is a more tangible value than lofty goals and agenda tainted purposes?
He does not. He says the two views are "irreconcilable". Thus does a simple amendment in plain English become something reasonable people are destined to disagree over.
Posted by: boris | February 03, 2010 at 06:11 PM
boris:
"Failing to quote the applicable text makes it harder, don't you think?"
Ignoring text that doesn't accord with your assertions makes it considerably easier to defend them, doesn't it? Eliding, truncating and interjecting are useful too. Reading your own isolated paragraph in full, one could similarly conclude that Fish also believes the consequentialists are feckless enough to abridge whatever they dislike or fear or don't value. Indeed, stripped of context, the principled here look like paragons of probity in comparison.
Posted by: JM Hanes | February 03, 2010 at 06:15 PM
JMH, my reading of Fish: his faction places more value in the purposes of the First Amendment and its goals, while the other faction values founder worship more. But he says it nicely.
Posted by: boris | February 03, 2010 at 06:27 PM
boris:
If you were to replace "founder worship" with "foundational principles," I'd pretty much agree.
Posted by: JM Hanes | February 03, 2010 at 07:02 PM
Well I know what "founder worship" means. "Foundational principles" seems open to interpretation, like purposes and goals.
The value of a clear, unambiguous interpretation is left out of the picture. That does not depend on founder reverence or foundational anything.
Posted by: boris | February 03, 2010 at 07:13 PM
Maybe Fish,having gone down both roads,doesn't want to finish the trips.We all think he could ( or has )but maybe he just places a greater value for himself to be neutral in teaching the subject and letting his students have at it.Since we do not lack for advocates on both sides,we can throw this fish back in the water :)
Posted by: david53 | February 03, 2010 at 07:32 PM
Only the timid hide behind the Constitution and the Declaration of Independence.
Cut to the chase: Society depends on the liberty to laugh at any stupid idea put forward by anyone else who chooses to speak. It is not law that protects the laughter, it is simple sense open to anyone who cares to work it out.
And if you can't work it out, then my "friend-or-foe" indicator starts flashing.
Posted by: sbw | February 03, 2010 at 07:45 PM
SBW,
If those who stink of sophistry yet shine among moonbats have their way, ridicule and mockery will be as actionable here as it is in Canada or the UK. I'm sure Mark Steyn could provide a plethora of details as to how it works in practice.
Posted by: Rick Ballard | February 03, 2010 at 09:03 PM
Consider the phrase "...speech [which] harbors the potential for corruption" in the context of both the explicit language of the First Amendment and the history of freedom and supression of speech in this country. Is that not a profoundly un-American way of looking at the issue? (And wasn't McCarthy, in Fish's definition, a true consequentialist?)
Posted by: Boatbuilder | February 03, 2010 at 10:11 PM
A hundred years ago, you could have asked that we follow the rule of law-the Constitution. but that has been corrupted beyond all recognition. Now we should ask, what lends itself less to empowering a tyrant class?
Posted by: qrstuv | February 03, 2010 at 11:55 PM
Sbw, I have the greatest respect for your thoughts as expressed in this forum and on your own blog, but I think you have it all wrong on this one. The American Declaration of Independence and the US Constitution embody principles of liberty that many thoughtful folks over the last several thousand years have deemed toxic to a stable society. The American Experiment as embodied in our founding documents is a dangerous experiment in self-government that requires a discipline and bravery in the body politic that receives constant refreshing from our founding documents. I wonder whether you might reconsider your view that only the timid hide behind these documents. Rather, to cite these documents and take them seriously in substance contradicts much of theologico-political thought over the centuries (a substantial strain of which is that self-government is inherently unstable because substantially all of humankind is a mass of disorder that must be governed by myth from those who are wiser).
Posted by: Thomas Collins | February 04, 2010 at 09:54 AM
Tee hee!
Posted by: sbw | February 04, 2010 at 10:07 AM